Woodard & Woodard

FAMILY COURT OF AUSTRALIA

WOODARD & WOODARD

[2008] FamCA 37

FAMILY LAW – PROPERTY – Consent Orders – s 79(2) just and equitable

Family Law Act 1975 (Cth)

APPLICANT:

MR WOODARD

RESPONDENT:

MRS WOODARD

FILE NUMBER:

MLF

433

2006

DATE DELIVERED:

24 JANUARY 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

YOUNG J

HEARING DATE:

24 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HANNAN

SOLICITOR FOR THE APPLICANT:

EALES & MACKENZIE

COUNSEL FOR THE RESPONDENT:

MR HUTCHINS

SOLICITOR FOR THE RESPONDENT:

BERRY & ASSOCIATES

ORDERS

THAT all previous property and financial Orders be discharged.
THAT the husband pay to the wife the sum of $110,000.00 ("the payment") as follows:
a)the first payment of $30,000.00 on or before 24 February 2008;
b)the second payment of $80,000.00 on or before 1 August 2008.
THAT contemporaneously with the second payment the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all her right, title and interest in the business known as W Business ("the business") and resign as Director/secretary of F Pty Ltd and transfer to the husband or his nominee any shareholdings she may have in the said company
THAT:
(a)the husband and wife shall do all necessary acts and sign all necessary documents to procure within 45 days a discharge of the husband's liability pursuant to the mortgage number … to the Australia and New Zealand Savings Bank Limited jointly secured by the husband and wife (the mortgage) and being registered on the former matrimonial home situate at and known as … E in the State of Victoria and being the whole of the land comprised in Certificate of Title Volume … (the former matrimonial home), following which the wife obtain a mortgage on the former matrimonial home in her sole name so as to release, discharge and indemnify the husband from personal responsibility under the mortgage (the discharge). (Noting that the husband's obligations pursuant to this Order is limited to signing any necessary discharge documents).
(b)contemporaneously with the discharge being effected, the husband provide to the wife a duly executed Transfer of Land in registrable form so as to transfer to the wife absolutely and relinquish any right, title, share and interest he has in the former matrimonial home to the intent that the Wife be the sole and absolute legal and beneficial owner thereof of the former matrimonial home (the transfer).
THAT:
(a)in default of the wife discharging the husband's liability pursuant to paragraph 4 hereof, the parties do all things necessary and sign all documents required for the former matrimonial home to be forthwith sold altogether out of Court ("the sale") (the wife to have conduct of the sale) and upon completion of the sale, the proceeds of sale be applied:
i)first, to pay the costs, commissions and expenses of sale;
ii)secondly, to discharge the mortgage; and
iii)thirdly, the balance to the wife.
(b)that pending the sale, the wife have the sole right of occupancy of the former matrimonial home and during such right of occupancy, the wife pay all instalments pursuant to the mortgage, rates, taxes and all apportionable outgoings in respect of the former matrimonial home.
THAT upon the second payment, the wife relinquishes to the husband or his nominee, any interest she may have in any loan accounts associated with the business or F Pty Ltd.
THAT the balance of approximately $25,000.00 standing in credit in the name of the wife in the ANZ offset account become the property of the wife.
THAT until the second payment to the wife, the husband be and is hereby restrained from selling, disposing, transferring or further encumbering the business or business property, save for the purpose of making payments to the wife and save for the ordinary course of business dealings.
THAT the husband continue to conduct the business in a diligent and business like manner until the second payment to the wife.
THAT in the event of the husband defaulting in making either payment to the wife, the husband transfer to the wife all his interest and entitlements in the business and the property of the business and the company F Pty Ltd to the wife upon trust for her to sell (the wife to have the conduct of the sale), the proceeds of sale be applied as follows:
c)first, to pay all costs, expenses and commissions of sale;
d)secondly, to pay the legitimate business debts and liabilities of the business and company;
e)thirdly, so much of the payment that has not been made be paid to the wife;
f)fourthly, the balance to the husband.
THAT the husband pay and indemnify the wife against all debts of the Husband's W Business and of the Business trustee company F Pty Ltd, past, present and future, including taxation and all actions, liabilities including taxation liabilities or Medicare levies, costs, proceedings, charges, stamp duty, expenses and demands relating to or arising out of the wife's operation and ownership or role in the Husband's W Business or the Business trustee company.
THAT the husband indemnify the wife with respect to the taxation liability of the business and company F Pty Ltd (estimated in the sum of $192,000.00) and any personal liability the husband may have to the Taxation Office.
THAT the wife be liable to pay and indemnify the husband with respect to any capital gains tax payable on the sale or other disposal of the property situate at and known as … in Tasmania being the land comprised in Certificate of Title Volume … registered in the wife's sole name.
THAT there be liberty reserved to both parties in respect to the effective implementation of these Orders.
THAT the husband retain and remove from the Tasmanian property his fishing gear within thirty (30) days of these Orders.
THAT:
(a)the Tasmanian property (registered in the sole name of the wife) become sole property of the wife;
(b)the husband forthwith do all things to remove the Caveat lodged against the Tasmanian property;
(c)the wife remain liable for the mortgage registered in her name against the Tasmanian property.
THAT unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife);
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders such that the husband indemnify the wife in respect of any personal guarantees signed by the wife in respect of the business property and the wife indemnify the husband in respect of any loan or guarantee of the wife over the Tasmanian property.
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
THAT Order 4 of the Orders of 25 January 2006 be hereby discharged.
THAT Orders 1, 2 and 3 of the Orders of 25 January 2006 be discharged and replaced with:
(a)the children of the marriage namely a daughter born in October 1990 and a son born in April 1994 ("the children") live with the wife;
(b)that the husband and wife are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children;
(c)that the husband and wife each have the sole responsibility for the day to day care, welfare and development of the children when the children are in the care of that respective parent
THAT the husband spend time with the children as mutually agreed in accordance with the children's wishes.
THAT the amended Application of the husband and the Response by the wife respectively filed on 2 July 2007 and 25 January 2006 be otherwise dismissed.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules, this matter reasonably required the attendance of Counsel for the husband and wife.
THAT all property/maintenance issues be removed from the pending cases list and all extant Applications be otherwise dismissed.
THAT all Subpoenaed documents be released by the Subpoena section of the Family Court in Melbourne to the relevant person or organisation.
PURSUANT to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT the extempore reasons be transcribed, placed on the Court file and be made available to the parties.
AND THE COURT NOTES:

A.THAT the parties intend these Orders as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.
B.THAT the current mortgage balances are approximately $180,000.00 for the former matrimonial home and approximately $29,000.00 in respect of the Tasmanian property.
C.THAT the husband maintains that he has returned the generator to the Tasmanian property.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Woodard & Woodard

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 433 of 2006

MR WOODARD

Applicant

And

MR WOODARD

Respondent

REASONS FOR JUDGMENT

This matter is listed before the court for a final determination of property and all financial matters. This matter was initially before me on Monday, 21 January and currently it has been stood over for mention on Wednesday, 30 January.
What has occurred is that the husband and wife, together with each of their counsel have attended a mediation conference before Mr Indovino of counsel. That substantial conference between the parties has now resolved in minutes of final consent orders.
I was approached yesterday to list the matter for mention on the basis that I would be presented with final orders. As it turned out discussions continued throughout yesterday afternoon and most of this morning. Now, at 12.40 pm or thereabouts, I have final signed orders resolving all financial and property issues, and updating the children's orders.
Mr Hannan of counsel appears for the husband. Mr Hutchins of counsel appears for the wife. The husband is in court; the wife is not in court. I am aware, from information provided to me in open court yesterday, that the wife was taking time and care to negotiate, read and accept, the final orders.
She yesterday did not feel she was in a position to physically be in court and likewise she is not present in court today. In that context I have carefully asked of Mr Hutchins yesterday, and indeed he has confirmed today, that he has carefully and diligently taken the wife through the entirety of the settlement terms and he has confidently conveyed to the court that the wife has knowledge and understanding thereof.
Indeed it does seem this morning that there has been a major change to terms negotiated yesterday and now the orders have been amended at the request of the wife to reflect her ability to retain the primary home. That does show a level of knowledge, skill and involvement and I am accepting that these orders are consent orders entered into on an informed and knowledgeable basis.
I have read this file prior to the listing of the matter on 21 January. The affidavits may be only a few months out of date and, in that context, I regard them to be current and they certainly highlight the issues in difference on valuation and contribution in section 79(2) matters. I will not recite all of the relevant matters; these are consent orders.
The parties' marriage was approximately 18 years. There are two children; a daughter aged 17, and a son aged 13 years. Pursuant to orders made by consent before Guest J on 25 January 2006 those children live with the wife and then at times spent with the husband. These orders today will discharge the interim orders that were made as contact orders (back as it was then known) and now the children, in accordance with their wishes, will spend time as they determine with the husband.
Previously the orders were drafted in accordance with the then operative legislation so that the parties would share responsibility for the children but be solely responsible when they are in their respective care. I have raised with counsel, and there is general agreement, that the orders as to paragraphs 2, 3, and 4 thereof should be amended by consent to reflect the current drafting status of the legislation. That means that there will be an equal-shared parental responsibility order but the children are to live with the wife, and otherwise for the children's wishes to be respected.
As to the property and financial orders I have had presented to me, and I have marked as exhibit 1, a handwritten one-page overview of the assets and liabilities that were considered in the mediation discussions and which are now before the court. Both counsel have highlighted the pragmatic approach to the agreed asset pool. There was a significant difference of some $250,000 or thereabouts primarily because of the disputed valuation of the W business operated by the husband.
The parties, on the basis of full and proper disclosure, have determined to accept a midway asset pool of $897,000. There are agreed liabilities of $185,000 and thus, for the purposes of the consent orders, the parties have accepted a net pool of assets of $712,000. I therefore am asked to make the consent orders in that context knowing that the wife retains both real properties at E and in Tasmania, and additionally the instalment cash payment of $110,000. I am advised that that equates to 60 per cent of the asset pool.
The husband otherwise retains the balance; primarily the business. Each party retains their superannuation. The financial circumstances of the parties are recorded in their Form 13 financial statements which I have read. Both parties have an income earning capacity and their financial needs are clear from the affidavit material.
I also had on file a more detailed statement of assets, liabilities and resources prepared by the husband and his solicitors, as an addenda to his financial statement, and which had been earlier presented to the court. That highlighted the agreed and disputed assets, though the total assets on that document are certainly less than that which was agreed today and I give priority to what I have heard from the Bar table, the agreed statement of assets, and the midpoint valuation range.
As an overview, this court should accept the informed determination of parties. In this case I am satisfied that experienced counsel have advised the parties. The matter has resolved as a result of mediation conducted before a member of counsel of much experience. The parties have had the benefit of their solicitors.
According I propose to conclude that the division of the net assets, pursuant to section 79(2) of the Family Law Act 1975, is just and equitable. I accept the parties know the outcome and have concluded that the outcome is proper, just and equitable. From my knowledge of the case, and from what I have read, it is clearly within the appropriate boundaries of what is a fair, proper and just order.
I propose therefore to pronounce those orders and I will have these extempore reasons transcribed and placed upon the court file and made available to both parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date: 4 February 2008

[2008] FamCA 37

24 January 2008

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